Citation Nr: 20005253 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 16-47 350 DATE: January 22, 2020 ORDER New and material evidence has been received to reopen the previously denied claim for left shoulder dislocation; the claim is reopened. Entitlement to service connection for left shoulder dislocation is denied. Entitlement to service connection for spondylosis of the lumbar spine with facet degenerative joint disease, claimed as bulging disc lower back, is denied. Entitlement to service connection for glaucoma, claimed as chemical injury to both eyes, is denied. FINDINGS OF FACT 1. A November 1982 rating decision denied the Veteran’s claim of entitlement to service connection for a left shoulder dislocation; the Veteran did not perfect an appeal with respect to the issue. 2. Evidence received since the November 1982 rating decision relates to an unestablished fact necessary to substantiate the underlying claims of entitlement to service connection for a left shoulder dislocation. 3. The Veteran’s left shoulder dislocation did not originate in service or until years thereafter and is not otherwise etiologically related to the Veteran’s active service. 4. The Veteran’s spondylosis of the lumbar spine with facet degenerative joint disease did not originate in service or until years thereafter and is not otherwise etiologically related to the Veteran’s active service. 5. The Veteran’s glaucoma did not originate in service or until years thereafter and is not otherwise etiologically related to the Veteran’s active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for left shoulder dislocation. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for left shoulder dislocation have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for spondylosis of the lumbar spine with facet degenerative joint disease have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 4. The criteria for entitlement to service connection for glaucoma have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to August 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In September 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. The petition to reopen a claim of entitlement to service connection for left shoulder dislocation is granted. This matter is on appeal from a September 2013 rating decision, which denied service connection for left shoulder dislocation because it was decided that the evidence did not show that the disability was incurred in or aggravated by service. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18. The RO last denied service connection for left shoulder dislocation in November 1982 on the basis that “[r]esiduals of dislocation of left shoulder not found on last examination.” In the year following the November 1982, the Veteran did not submit any statements expressing disagreement with the decision nor did he submit any documents concerning the claim of service connection for left shoulder dislocation that could be considered new and material evidence. 38 C.F.R. §§ 3.156(b), 20.302. Therefore, the November 1982 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Although the claim was denied in November 1982 because a dislocation of left shoulder was not found, the Veteran submitted a November 2019 private examination summary in which a medical professional diagnosed the Veteran with chronic shoulder pain disorder that appeared to be a frozen shoulder, which she opined may be related to the in-service shoulder injury. As this new evidence relates to an unestablished fact, the criteria for reopening a claim of service connection for left shoulder dislocation have been met. 2. Entitlement to service connection for left shoulder dislocation is denied. The Veteran contends that he has left shoulder dislocation residuals that are related to an in-service injury, event, or disease. A December 1973 service treatment record reported that the Veteran fell on his shoulder while playing basketball and was unable to move his shoulder. An anterior bulge was noted. He was diagnosed with a dislocated left shoulder. Due to his dislocated shoulder, the Veteran was issued a temporary profile for his left shoulder on December 27, 1973 A January 1974 service treatment record reported that the Veteran had a dislocated left shoulder. An April 1974 service treatment record reported that the Veteran fell on his left shoulder the day before but had no swelling or inflammation. A March 1974 service treatment record reported that x-rays of both shoulders revealed no fractures, dislocations, or bone modifications. The diagnosis was left shoulder pain due to the December 1973 dislocation. A May 1974 service treatment record reported that the Veteran had recurrent pain in his left shoulder due to a dislocation in December 1973. X-rays did not reveal any pathological findings. A June 1974 separation examination reported that the Veteran dislocated his shoulder in December 1973 and January 1974 and was issued temporary 60-day profiles after both injuries. However, the examiner indicated the Veteran’s upper extremities were normal at the time of the examination. In August 1974, the Veteran reported that there had been no change in his medical condition since his separation medical examination on June 21, 1974. A January 2013 VA physician note reported that the Veteran had no joint pain or back pain. A February 2013 VA medical record reported that the Veteran had chronic left shoulder pain. The Veteran was afforded a VA shoulder examination in September 2013. The Veteran reported that, after his December 1973 shoulder injury, he was given medication and placed back on duty. He reported that he did not seek treatment after his discharge in 1974 because “he just moved his shoulder around, which relieved the pain.” The examiner diagnosed the Veteran with shoulder dislocation with a diagnosis in December 1973 and degenerative joint disease of both shoulders with diagnoses in February 2013 and August 2013. The examiner opined that the Veteran’s shoulder disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner explained that the Veteran dislocated his shoulder in December 1973 and experienced recurrent shoulder pain. X-rays showed calcific tendinitis. The Veteran’s separation medical examination was normal. After discharge, there is no evidence of any treatment for the left shoulder until February 2013, when he complained of chronic left shoulder pain. According to the examiner, “[t]here is no evidence of chronicity or continued treatment after service until 2013, over three decades later. Therefore, this examiner must conclude that the 1973 left shoulder dislocation was transient and temporary and the 2013 bilateral mild arthritis of the shoulders is age related and not a progression of the old left shoulder dislocation.” In November 2019, the Veteran submitted an examination report from a VA medical professional. The examiner diagnosed the Veteran was chronic pain disorder of the shoulder that she believed could be frozen shoulder. The examiner provided the following opinion: “While I am unable to say with certainty as to if the injuries he incurred... during his active duty service are causative - in my opinion, it is just as likely as not - that it could be playing a role in his current state of debility.” The Board affords this opinion no probative value as the examiner’s opinion was speculative and did not use the correct legal standard, which is “at least as likely as not.” Moreover, the examiner stated that she explained to the Veteran that the shoulder issue was “out of my purview.” As previously described, the Veteran’s service treatment records show that the Veteran dislocated his left shoulder in December 1973 and was placed on temporary profiles in December 1973 and January 1974. An April 1974 service treatment record reported that the Veteran fell on his left shoulder the day before but had no swelling or inflammation. A June 1974 separation examination reported that the Veteran dislocated his shoulder in December 1973 and January 1974 but indicated the Veteran’s upper extremities were normal at the time of the examination. The earliest evidence of a left shoulder disability was the Veteran’s complaint of chronic shoulder pain in February 2013. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the Veteran’s current left shoulder disability did not have an onset in active service or for many years thereafter. The Board acknowledges the Veteran’s contentions that his left shoulder dislocation residuals are related to his military service. While the Veteran is competent to report symptoms observable to a layperson, such as pain, to the extent that he seeks to establish a nexus between a current disability and service, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For this purpose, the Board finds the Veteran’s statements are not competent medical evidence. Consequently, the Board gives more probative weight to the September 2013 VA examination report. The examiner opined that the Veteran’s current shoulder disability was less likely than not incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner explained that despite the in-service left shoulder dislocation, the Veteran’s separation medical examination was normal. Moreover, “[t]here is no evidence of chronicity or continued treatment after service until 2013, over three decades later. Therefore, this examiner must conclude that the 1973 left shoulder dislocation was transient and temporary and the 2013 bilateral mild arthritis of the shoulders is age related and not a progression of the old left shoulder dislocation.” Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for left shoulder dislocation. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran’s claim for spondylosis of the lumbar spine must be denied. 3. Entitlement to service connection for spondylosis of the lumbar spine with facet degenerative joint disease, claimed as bulging disc lower back, is denied. The Veteran contends that he has spondylosis of the lumbar spine with facet degenerative joint disease that is related to an in-service injury, event, or disease. A May 1974 service treatment record reported that the Veteran fell and hurt his back. He was prescribed “ice massage” and directed to refrain from exercising for one week. A June 1974 separation examination reported that the Veteran’s spine was normal. In August 1974, the Veteran reported that there had been no change in his medical condition since his separation medical examination on June 21, 1974. A January 2013 VA physician note reported that the Veteran had no joint pain or back pain. A February 2013 VA medical record reported that the Veteran had chronic back pain. The Veteran was afforded a VA back examination in September 2013. The Veteran reported having back pain in 1974 during his military service. He reported seeking medical care for back pain from a clinic in Georgia around 2000. In February 2013, he began receiving care for his back pain from a VA facility in Shreveport, Louisiana. The Veteran was diagnosed with spondylosis. The examiner opined that the Veteran’s spondylosis was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner explained that the Veteran had a one-time occurrence of low back strain in service and his exit examination was negative for a back condition. There is no actual evidence of treatment after the military for a back condition until 2013, though the Veteran reported being seen many years after the military in 2000 for steroid injections into the back. The examiner explained that epidural spinal injections are not a treatment for back strain, which was the in-service injury that resolved. According to the examiner, the Veteran’s current diagnosis of spondylosis is due to aging changes. In November 2019, the Veteran submitted an examination report from a VA medical professional. The examiner diagnosed the Veteran was chronic pain disorder of the back and provided the following opinion: “While I am unable to say with certainty as to if the injuries he incurred... during his active duty service are causative - in my opinion, it is just as likely as not - that it could be playing a role in his current state of debility.” The Board affords this opinion no probative value as the examiner’s opinion was speculative and did not use the correct legal standard, which is “at least as likely as not.” Moreover, the examiner stated that she explained to the Veteran that the back issue was “out of my purview.” As previously described, the Veteran’s service treatment records show one incident of a back injury in May 1974. A separation examination administered the following month reported that the Veteran’s spine was normal. The earliest evidence of a back disability was the Veteran’s complaint of chronic back pain in February 2013. The Veteran also reported receiving steroid injections for his back in 2000. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the Veteran’s spondylosis of the lumbar spine did not have its onset in active service or for many years thereafter. Moreover, in January 2013, the Veteran reported that he had no joint pain or back pain. The Board acknowledges the Veteran’s contentions that his spondylosis of the lumbar spine is related to his military service. While the Veteran is competent to report symptoms observable to a layperson, such as pain, to the extent that he seeks to establish a nexus between a current disability and service, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For this purpose, the Board finds the Veteran’s statements are not competent medical evidence. Consequently, the Board gives more probative weight to the September 2013 VA examination report. The examiner opined that the Veteran’s spondylosis was less likely than not incurred in or caused by an in-service injury, event, or illness, as the Veteran’s current diagnosis of spondylosis was found to be due to aging changes. The examiner also explained that the Veteran had a one-time occurrence of low back strain in service and his exit examination was negative for a back condition. Moreover, there is no actual evidence of treatment after the military for a back condition until 2013 and the Veteran’s report of steroid injections being administered in 2000. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for spondylosis of the lumbar spine. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran’s claim for spondylosis of the lumbar spine must be denied. 4. Entitlement to service connection for glaucoma, claimed as chemical injury to both eyes, is denied. The Veteran contends that he has glaucoma that is related to an in-service injury, event, or disease. A July 1973 report of medical history, completed shortly before the Veteran began his active service reported that the Veteran had occasional blurring of his eyesight. A review of the Veteran’s service treatment records does not reflect any complaints, findings, or treatment for any conditions related to a vision problem. A June 1974 separation examination reported that the Veteran’s eyes were normal. In August 1974, the Veteran reported that there had been no change in his medical condition since his separation medical examination on June 21, 1974. A January 2013 VA note reported that the Veteran complained of hazy vision and heart racing since May 2012. A February 2013 VA ophthalmology note reported that the Veteran was diagnosed with glaucoma two years earlier and reported having decreased vision for the prior two years. A September 2014 VA eye examination reported that the Veteran had glaucoma surgery for his right eye in March 2013 and glaucoma surgery for his left eye in February 2014. In May 2017, the Veteran’s representative submitted an informal hearing presentation in which he stated that the Veteran sprayed chemical in his eyes during basic training. The Veteran believes that this event caused his glaucoma. At the September 2019 Board hearing, the Veteran testified that he believed that the glaucoma was due to drops placed in his eyes during service. He also testified that the onset of glaucoma began when he was 50 years old. As previously described, the Veteran’s service treatment records show no evidence of treatment for glaucoma or a vision problem. Moreover, a June 1974 separation examination reported that the Veteran’s eyes were normal. The earliest evidence of glaucoma was a February 2013 VA ophthalmology note reporting that the Veteran was diagnosed with glaucoma two years earlier. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the Veteran’s glaucoma did not have its onset in active service or for many years thereafter. Moreover, in January 2013, the Veteran reported that he had been experiencing hazy vision since May 2012. The Board acknowledges the Veteran’s contentions that his glaucoma is related to his military service. While the Veteran is competent to report symptoms observable to a layperson, such as pain, to the extent that he seeks to establish a nexus between a current disability and service, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For this purpose, the Board finds the Veteran’s statements are not competent medical evidence. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for glaucoma. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran’s claim for glaucoma must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.